Bombay High Court
Asstt.Commissioner Of ... vs Siraj Badruddin Pirani & Ors on 5 November, 2019
Author: K.R.Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.796 OF 1997
Asst. Commissioner of Customs (Preventive) )
Mumbai )....Appellant
V/s.
1) Shri Siraj Badruddin Pirani alias )
Salim Badruddin Surani )
2) Shri Roshanali Hirji Rajani )
3) Shri Akbarali Allauddin Wasaya )
4) State of Maharashtra )....Respondents
----
Ms.Anuradha Mane for appellant.
Mr.S.R.Phanse for respondent no.2.
Mr.Amin Solkar i/by Mr.H.A.Solkar for respondent no.3.
----
CORAM : K.R.SHRIRAM,J
DATE : 5.11.2019
ORAL JUDGMENT:-
1. This is an appeal filed under Section 378(2) of the Code of Criminal Procedure 1973 against the order of acquittal dated 21.7.1995 (the impugned judgment) passed by the learned Addl. Chief Metropolitan Magistrate, Ballard Pier, Mumbai in C.C.No.90/CW/1995.
2. The appellant is the Assistant Commissioner of Customs (Preventive), Mumbai. The appellant had filed a criminal case KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 2/19 401.Apeal796.97.doc against three persons who are respondent nos.1, 2 & 3 viz. (1) Siraj Badruddin Pirani alias Salim Badruddin Surani (accused no.1) (2) Roshanali Hirji Rajani (accused no.2) and (3) Akbarali Allauddin Wasaya (accused no.3). The appeal as against accused no.1 is separated as per the Court's order dated 4.6.2002 because accused no.1 has not been traced. Therefore, I heard the learned Counsel for the appellant as well as counsel for accused no.2 and counsel for accused no.3 and in view of the conclusions I have arrived at as noted below, I decided to dispose the appeal as against accused no.1 without requiring his presence.
3. Appellant had filed a private complaint against the three accused on the allegations that on 15.11.1994 the three accused tried to board a Cathay Pacific Flight no.CX-750 bound for Bangkok with foreign currency concealed either in their baggage or on their person for which they did not give any account and by virtue of having acquired the possession, carrying, concealing and removing foreign currency and Indian currency the accused knew or had reason to believe that those currencies were liable to be confiscated under the Customs Act 1962. Accordingly, the accused were charged for offences punishable under Sections 120-B of Indian Penal Code read with Section 135 (1) (a) read with section 135 (1) (ii) and 135 (1) (b) KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 3/19 401.Apeal796.97.doc of the Customs Act 1962.
4. Evidence was led before charge of three witnesses but as there was no cross-examination to the evidence of these witnesses, the charge against the accused was framed. All the accused pleaded not guilty to the charge and claimed to be tried. The defence of the accused was of total denial and according to the accused no currency notes were found either in their baggage or on their person. According to the accused the property which were produced before the Court such as bags, pouches did not belong to them. Accused no.2 has also denied that he had ever concealed foreign currency in a balloon inserted in his rectum and according to them the entire prosecution case is false.
5. All the three accused have also in their statement recorded under Section 313 of Cr.P.C denied that the statement recorded by appellant under Section 108 of Customs Act 1962 was voluntary. Accused have also stated that the statement under Section 108 was not read over or explained to them and their signatures were obtained by force or by threat of assault. Accused no.1 has also stated that not only the statement was not read over but he was also assaulted. Statements recorded under Section 108 have been retracted by the KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 4/19 401.Apeal796.97.doc accused. Reliance was placed by the learned Advocate for the appellant to submit that the statement under Section 108 was admissible in evidence and based on that statement witness can be prosecuted. Counsel for respondents in fairness agreed that a statement recorded under Section 108 of the Customs Act 1962 was certainly admissible in evidence but that does not mean that the prosecution does not have to prove anything. Counsel rightly submitted that if that was the case then where was the need to record any evidence or cross-examine the witnesses. A simple production of the statement recorded under section 108 and the accused admitting their signatures in their statements should have been enough and the trial should have come to an end at that stage. I cannot agree more with the counsel for the respondents.
6. According to appellant, on the basis of specific information, the officers of Marine and Preventive Wing of Customs maintained surveillance of the departure area of Terminal 2-A, Sahar International Air Port of Bombay at early hours of 15.11.1994. The officers intercepted three accused after they had checked in to board the Cathay pacific Flight No.CX-750 to Bangkok and these three persons, on preliminary inquiry, admitted concealing of foreign currency either in the baggage or on their person in the presence of panch witnesses.
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According to the complainant, since the place at the Air port was not suitable for thorough examination of these persons, they escorted these three persons along with their baggages to the Customs (marine & preventive) office situated at Everest House at Marine Lines, Mumbai (City office). Thereafter two panchas were called and in their presence the accused were asked if they were carrying any foreign currency illegally and all of them admitted saying they are carrying foreign currency in their luggage or on their person. Thereafter in the presence of panch witnesses the baggage of accused no.3 which consisted of one suitcase and one carry bag were checked. The officer discovered small paper rolls wrapped in cellophane tapes, concealed in the hollow portion of handles of shaving razor and hair brush in the carry bag. When the rolls were opened it was found to contain foreign currency of different countries in different denominations. Officers thereafter cut open the strips at the outside of the suitcase and found small bits of paper wrapped in cellophane tapes and on unwrapping them, found currency of various countries and denominations. Rupee equivalent of the currency found on accused no.3 was Indian Rs.95,940/-.
7. Thereafter baggage of accused no.2 was searched but nothing was found and in the presence of panch witness accused no.2 KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 6/19 401.Apeal796.97.doc admitted to having concealed foreign currency in his body and he wanted to eject the same. Thereafter accused no.2 was escorted to the toilet along with the panchas where he ejected from his rectum a packet which was washed and dis-infected. The said packet was a balloon. The balloon was found to contain small paper rolls wrapped in cellophane tapes and on opening the same they were found to be containing assorted foreign currency equivalent to Indian Rs.3,08,700/-.
8. Thereafter officers examined baggage of accused no.1 comprising one suitcase and one carry bag ; the carry bag had a razor and hair brush and paper rolls wrapped in Cellophane tapes from the hollow portions of a razor and hair brush was found. When it was opened the rolls contained foreign currency equivalent to Indian Rs.1,50,004/-.
9. On the personal search of three accused, officers recovered Indian currency of Rs.5000/- Rs.1,000/- and Rs.2,000/- from the accused nos.1, 2 & 3, respectively. The total amounts seized including foreign and Indian currency was Rs.5,62,644/- and these currencies were seized under panchanama in the reasonable belief that it was being smuggled out of India in contravention of the KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 7/19 401.Apeal796.97.doc provisions of section 13 of the Foreign Exchange Regulation Act 1973, and they were liable to be confiscated under the provisions of Customs Act 1962.
10. The prosecution after the charge was framed, led evidence of 5 witnesses. PW-1 C.Sunder Raj who had caught the 3 accused at Sahar International Air Port. PW-2 is one M.V.Nair, Supdt. of Customs (Preventive) attached to Marine and Preventive Wing who had recorded statements of accused nos.1 & 2. PW-3 is one B.B.Mohite, Supdt. of Customs (Preventive) who had accompanied PW-1 along with Assistant Collector of Customs Shashank Priya to the Air Port when the 3 accused were apprehended. PW-3 also was examined to show that he had recorded statement of accused no.3. PW-4 is Anwar Hussein who was working with M/s.Fahim Travels, in-charge of ticketing department and through whom the tickets of the 3 accused were booked. The last and 5th witness is G.L.Sakpal the panch witness. Number of documents and articles were filed and exhibited. Total of 27 documents/articles were produced and they were marked as Exh.P-1 to Exh.P-27. Exh.P-22 and Exh.P-23 were initially marked as article X-1 and X-2 but later were received in evidence.
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11. It is the case of the prosecution that from the statement recorded under Section 108 of the Customs Act all the accused had admitted that they have visited foreign countries and they used to carry foreign currencies. The statements were recorded in English, have been signed by the accused and counter signed by a Gazetted officer. Further statement of accused no.1 was recorded in which he is stated to have admitted that he used to make about Rs.15,000/- per trip as profit. It is alleged that accused no.1 was also convicted earlier in another attempted illegal export of foreign currency case.
12. All the accused were arrested and remanded to judicial custody and after getting sanction for taking cognizance under section 125 of the Customs Act (Preventive), Bombay, the appellant had, on 13.6.1995 filed complaint against all the accused.
13. The defence attacked the evidence of all the 5 witnesses on various grounds including raising certain legal issues. It was the case of the defence that the entire story of the prosecution that the accused were proceeding towards the Air craft and they were having foreign currency notes in their person and baggage is completely concocted. Accused also state that the property which were produced before the Court do not belong to them and also no foreign currencies were KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 9/19 401.Apeal796.97.doc found, either on their person or their baggage.
14. Ms.Mane agreed that this being a criminal prosecution, though under the provisions of Customs Act, the principles of criminal jurisprudence would certainly apply in as much as it is the onus on the prosecution to convince the Court that the accused are guilty beyond reasonable doubt.
15. Now let us examine whether prosecution has succeeded in its efforts and whether this Court should interfere and allow the appeal.
16 The Apex Court in Chandrappa & Ors. V/s. State of Karnataka 1
in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under :
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1)................
(2)................
(3)................
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the the accused. Firstly, the presumption of innocence available to 1 (2007) 4 SCC 415 KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 10/19 401.Apeal796.97.doc him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
17. I would agree with the conclusions arrived at by the learned Magistrate for the following reasons :-
(i) It is the case of the prosecution that the Customs Officers kept surveillance in the departure area for the accused and when the accused were proceeding towards the Air craft, after they entered the check post, the accused were apprehended. From the way the complaint has been filed, the evidence given and the answers given in cross-examination, the spot of apprehending the accused appears to be post completion of immigration formalities and before the boarding air craft. It is the case of the prosecution that after checking in "when the accused were proceeding towards the air craft". If it was before the immigration prosecution would have said accused were proceeding towards the immigration counter. It is certainly after checking in because prosecution has produced 3 boarding passes of all the 3 accused and also the passports. In his cross-examination PW-1 was asked by the counsel for accused no.1 by showing to PW-1, copy of KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 11/19 401.Apeal796.97.doc the boarding passes and the passport as to whether there are any endorsements on the boarding passes or the passport made by the immigration authorities and PW-1 has said that there was no departure stamp on the boarding passes or the passport of the 3 accused on 15.11.1994. This has a very serious implication because if it is the case of appellant that if accused were apprehended when they were proceeding to board the air craft, certainly the boarding passes and passports will have the stamp of the immigration authorities.
Witness has not clarified that they were apprehended before proceeding for immigration and there is no re-examination of the witness to clarify this. Therefore, the fact that the accused were apprehended while boarding the air craft itself is doubtful. There are no panch witnesses also while the accused were apprehended. It is also admitted by PW-1 in the cross-examination that they have not even taken assistance of the office of the Assistant Collector of Customs at the Air port or Air Intelligence unit at the air port or sought their co-operation for carrying out the operation and for checking the baggage.
(ii) It is the case of the prosecution that after the accused were apprehended they were taken to the city office because there were many persons at the air port and they did not find it suitable for KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 12/19 401.Apeal796.97.doc conducting examination. PW-1 has also stated that it was also difficult to get panch witness at the air port and when they have to be produced for giving evidence, they do not turn up. He has no explanation how the panch witnesses who were found near the city office were more reliable. Prosecution has also not explained why they could not have taken the accused to the office of Assistant Commissioner of Customs at the air port or to the office of air Unit at the air port to open the bag and to search the accused. Instead they brought the accused from the air port to the city office which was at a distance of 30 to 45 k.m. There are no vehicle details also produced by the prosecution as to in which vehicle accused were brought and who were with the accused in that vehicle.
(iii) The other glaring error is accused were found to be carrying bags and pouches when they were apprehended. If it was after the immigration, certainly those bags or pouches should have hand baggage tags with the rubber stamp of the air port security. No hand baggage tag has been produced in the evidence.
(iv) Panch witness PW-5 has contradicted PW-1. According to PW-1 the two panch witnesses were having tea in a nearby hotel adjoining the flyover close to the city office. This had been denied by PW-5 panch witness. According to him he was proceedings towards Marine Lines station and at that time he was called by the officer to be a KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 13/19 401.Apeal796.97.doc panch witness. PW-5 states he was never sitting with other panch witness Shetty (who was not examined) in a nearby hotel having tea but when he was called to the city office, the other panch witness was already sitting there. PW-5 has also deposed that when he was called, he found 3 or 4 leather bags lying on the table inside the city office. The bags were opened by the officer and when opened, he found some currency notes, razors and pickle bottles and papad in the bags. Curency notes were visible. It is not the case of the prosecution that the currency notes were kept openly in the bags for any one to see but were concealed in pouches, razor and hair brush. He further said some foreign currency notes were concealed under shirt collars of the accused which accused were wearing, but it is not the case of the prosecution that they also found foreign currency notes concealed inside the shirt collar of the accused. All these raises a doubt that the panch witness is a got up witness and he has not seen anything about the seizure of currency notes from the possession of the accused. In fact, panch witness has also admitted in the cross-examination that the custom officer never questioned any of the accused in his presence. Therefore, the question of accused no.2 making statement to PW-1 in the presence of the panch witness that he has currency notes hidden in his rectum is also nothing but a concocted story.
(v) If according to prosecution, accused no.2 had admitted or KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 14/19 401.Apeal796.97.doc confessed that he had hidden a balloon in his rectum before the accused was made to eject the balloon, it would have been reasonable to expect the prosecution to get an X-ray of the body of accused no.2. This has not been done. PW-1 has also admitted that before sending accused no.2 with the panchas into the toilet to enable accused no.2 to eject the balloon hidden in his rectum, prosecution did not take search of the toilet in the presence of panch witness. The entire case of the prosecution is that orange colour balloon was ejected by accused no.2 from his rectum and that balloon was Exh.P2. But when one examines Exh.P-2 there are various pieces of balloons of 4 different colours and 3 knots of balloons of different colours. Exh.P-2 is not of just one orange colour ballon but there are 4 different balloons with 4 different colours. I fail to understand if accused no.1 has ejected only one balloon containing foreign currency, from where prosecution finds 4 balloons of 4 different colours and 3 knots of balloons of different colours. All these factors create doubt in the mind of this Court on the truthfulness of the case of the prosecution.
(vi) Moreover, PW-5 has in his cross-examination has stated he does not understand English and the other panch witness Shetty did not narrate or explain the panchanama while it has been written. PW-5 stated that purely relying on the statement of Shetty, who has not KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 15/19 401.Apeal796.97.doc been examined, that what is written in the panchanama, is correct, PW-5 signed the panchanama. PW-5 also stated that he has never seen foreign currency notes prior to the date on which he was called as a panch witness. In response to a question put as to how does he say those were foreign currency notes, PW-5 stated since Custom officer stated those were foreign currency notes, he said those are foreign currency notes.
(vii) Annexed to the panchanama is the statement giving the name of the persons, type of currency, number of denominations and the value thereof. This statement has been signed by both the panch witnesses. The statement has been prepared by the prosecution and it is supposed to have been read over and explained to the panch witnesses. PW-5 who is the only panch witness who has been examined, has made it clear that he did not understand English and I would have expected the prosecution to produce other panch witness Shetty to bolster their case instead of producing PW-5. These currency notes seized have not been produced before the Court. According to prosecution these notes were deposited with the Reserve Bank of India as per Exh.P-22 and Exh.P-23. If one considers Exh.P-22 & Exh.P-23, it does not mention from which accused what currency was found or the currency being deposited by the Customs KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 16/19 401.Apeal796.97.doc Department with the Reserve Bank of India are the same foreign currency which have been confiscated or found in person of the 3 accused.
(viii) PW-2 has stated that after he interrogated accused nos.1 & 2 in Hindi to which replies were given in Hindi, he dictated to one of his officer the statement made by accused no.2 in English. According to him after recording statement, it was read over and explained and accused no.2 had signed the statement. The statement is at Exh.P-11 and PW-1 has scribed the statement. Similarly, accused no.1 was questioned in Hindi language. Accused no.1 replied in Hindi and the same was dictated in English by PW-2 to another officer. According to PW-2 after the statement of accused no.2 was over, it was read over and explained in Hindi language. It is admitted that the accused have retracted the statement. PW-2 in his cross-examination has admitted that he has gone through the panchanama along with annexures. He has inspected the properties which were seized under panchanama but he has not tallied the foreign currency which was actually seized. In the statement under Section 108 it is recorded "Thereafter Shri Salim Bhai gave me a balloon full of foreign currency" which means one balloon but what is produced in Exh.P-2 are 4 balloons. PW-2 who had recorded the statement under Section 108 ought to have checked KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 17/19 401.Apeal796.97.doc whether what was ejected was one balloon or 4 balloons. He also stated he does not remember whether the statement of accused no.2 was in consonance with panchanama and property seized. In his cross-examination PW-2 has also admitted that the property is not properly described in the panchanama. He has also said he never asked PW-1 who was the scribe to correct the panchanama to tally with the property found. In response to a question as to whether the original panchanama was shown to accused no.2, he says it was not shown. But in the panchanama, there is a statement of accused no.2 having received copy of the panchanama. PW-2 also said though he has taken details of the visits of the accused to Bangkok, he has not seized any visa or passport of accused no.2. There is a statement of accused no.2 that he visited UAE 7 times but the passport of accused no.2 does not show any visa endorsement. In fact, there is no visa endorsement even for Bangkok and it is common knowledge that even a boarding pass is not issued without a passenger having Visa.
(ix) Moreover, there is nothing on record what was the specific information that was received against the accused and how the complainant identified that these were the 3 accused and straightway went and apprehended them in the air port. It is not the case of anybody that someone knew these 3 persons and they were identified KJ ::: Uploaded on - 16/11/2019 ::: Downloaded on - 23/04/2020 03:16:15 ::: 18/19 401.Apeal796.97.doc as the persons who are suspected to be carrying contraband. The case of the prosecution is that they had specific information and they went to the air port and apprehended the accused in the midst of the crowd in whose presence they were uncomfortable to open the baggage of the accused. But the prosecution has not explained anywhere as to how they identified these 3 persons as the so called carriers of foreign currency. Witness has also expressly stated that the specific information that they have received about the 3 accused must be probably with the Additional Collector and it was not sure whether it was available.
18. There are many other discrepancies which I can list on and on and on.
19. In my view, whatever have been listed above itself is more than sufficient to dismiss the appeal.
20. There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
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Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial Court. For acquitting the accused, the Trial Court observed that the prosecution had failed to prove its case.
21. The evidence has been common. Moreover, when the appeal against accused nos.2 & 3 is being dismissed, I see no reason why the appeal acquitting of accused no.1 which was separated should also not be disposed. I would have found it necessary to direct issuance of Non Bailable Warrant against accused no.1 to produce him before the Court so that he could be given an opportunity to present his case only if I was inclined to allow the appeal against accused no.1. My findings above will also enure to the benefit of accused no.1 and therefore, I see no reason why the presence of accused no.1 should be called for. The submissions made by counsel for accused nos.2 & 3 will also equally apply to accused no.1.
Therefore, the appeal including appeal which was separated for accused no.1 stands dismissed. No order as to costs.
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